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The U.S. Supreme Court issued its decision in United States v. Skrmetti.
In a 6-3 decision, it held that:
The outcome was more or less decided by the threshold question: which type of review applies? There are 3 options:
The Tennessee law at issue didn't fall into category 1, so the argument was about whether it was category 2 or 3. Per the Court:
Once the law fell into category 3, that was pretty much that. There is some wiggling around to deal with Gorsuch's opinion in Bostock (which is what causes Alito to concur in parts of the opinion rather than the full thing since he dissented from Bostock), but Gorsuch joined this opinion in full, so apparently he didn't have a problem with the Court somewhat limiting Bostock here.
As one might expect, Sotomayor, Kagan, and Jackson dissented--they think intermediate scrutiny should apply. I cannot impartially comment on Sotomayor's dissent because most everything of hers that I read makes me think that Larry Tribe was, if anything, too kind in his remarks.
I agree with @gattsuru and @ArjinFerman here. This is not a major victory for the red tribe, or a major loss for the blue. It's probably valuable, politically, for Republican politicians to be able to say to their base both that this is a win for "state's rights" and a win against "the trans agenda." I expect red states to increasingly adopt anti-hormone and anti-puberty-blocker legislation, and blue states to explicitly protect it, and probably we will also start seeing "trans your kids by mail" services not unlike what we have with abortion. So the victory will be mostly symbolic (which may count for something, but may not).
It's worth noting that Kagan, though she agreed on heightened scrutiny, declined to join the Court's low-IQ wing to assert that also the law failed under heightened scrutiny. Once again she shows herself to be, by a wide margin, the most competent jurist on the Court's left wing.
It's also worth noting that this is not quite correct regarding intermediate scrutiny:
Intermediate scrutiny applies to laws that discriminate on the basis of sex. Merely containing classifications is not sufficient. What's the difference? Well, the minority tries to claim that there's no difference; the law mentions sex, therefore the law is about sex, therefore intermediate scrutiny. But the majority points out that there are many laws obviously dealing with sex, that do not warrant intermediate scrutiny. The most obvious, of course, is any law dealing with pregnancy. Only women (sexually mature human females) can get pregnant. Every law dealing with the classification of "pregnant" contains a sex-based classification. But the discrimination in such laws is grounded in a medical status (pregnancy) rather than in sex. In this case, the discrimination is based on age (the state is denying both minor males and minor females cross-sex hormones and puberty blockers) and medical status.
Incidentally, this is why the late Justice Kennedy's opinion in Obergefell is and has always been such a mess. Laws denying males the right to marry males don't discriminate on the basis of sex because everyone has the right to marry someone of the opposite sex. No one was being denied the right to marry on the basis of sex (any gay person could legally marry someone of the opposite sex...), but on the status of not being part of a consenting heterosexual dyad. What the left wanted out of that case was for intermediate (or even strict!) scrutiny to be applied to sexuality, which is obviously a different status than sex. But Kennedy didn't write the opinion that way (he didn't use "scrutiny" analysis at all, instead using history-and-tradition, which is transparently nonsense). Even post-Bostock, sexuality still hasn't been formally adopted by the Supreme Court as a "suspect class."
Despite the utterly bizarre attempt by Biden and Harris to declare the "Equal Rights Amendment" passed (how was he not called an attempted dictator for that?), the fact is that even "heightened scrutiny" on sex is utterly without grounding in the Constitution of the United States. Which brings us back to Skrmetti: a real win for conservatives here would have been a majority declaration that sex and gender are not suspect classifications at all, that sex and gender relevant regulation all belongs in the "rational basis" bin.
Never going to happen, I know. But that's what an unqualified victory would look like, here. This decision ain't it.
Tbf, surgical interventions tend to be a lot more central to many of these controversies, and they're a lot harder to send by mail and a lot easier to enforce laws against. I'd expect some of that turns into 'holiday' surgical trips, but there are limits to how that can be practically done given what degree of surgical interventions are long multistage procedures including post-operative care, and we have started to see (and I expect will continue to see) people moving from one state to another over these policies.
Trans people are already used to travelling for surgeries not because of legal issues but because there’s so few skilled surgeons out there. For instance the best MtF sexual reassignment surgeons are all in Thailand, and you generally book a hotel for a full month there in case of complications.
For 'bottom' surgery, yes (ish; not everyone does actually go to The Best, and some transmen don't do what they'd count as bottom surgery and just get a hysterectomy that their local surgeons can do). For top surgery, it's a lot more varied, and I personally know trans people who've had mastectomies or breast augmentation in Red Tribe states. For other surgical procedures, as far as I can tell, very long distance travel seems an outlier. You might hike to the best facial cosmetic surgeon in the region, but you don't need to cross the ocean to find someone pretty good at it.
((And that's ignoring stuff like laser hair removal that gets categorized as 'surgery' for stupid medi* reasons.))
I've heard lots of accounts of regular medical (and dental) patients crossing the border to Mexico (and maybe Canada) for procedures because it's much cheaper there and the quality is equal or at least close enough. A few horror stories too, though. Usually not too distant travel, though.
I think cancer patients travel pretty regularly for specialist treatment too.
Yes, it's pretty normal to get dental surgery in Tijuana or Ciudad Juarez, but usually only if you already live in the southwest- and you probably get some cheap shopping done while you're at it.
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A bit hard to pull off for a 14 year old girl, without the approval of the parents.
I’m pretty sure the cases of actual surgery are not cases in which the parents don’t know or approve.
Yeah, "approved" in the Milgram Experiment sense.
It wasn't a long time ago that the pro-trans side had total information dominance. Even If a parent had their doubts and wanted to double-check what the doctor said, all they'd find after googling is papers and statements from respected institutions telling you how Gender Affirming Care is The Science™, and you're an ignorant fool for wanting to delay or avoid your child's medicalization. It takes a special kind of contrarian to go with their gut, against every authority figure in vicinity and beyond.
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I don’t think many 14 year olds can afford a $15k+ surgery without their parents anyway.
Are mastectomies really that expensive? Aren't there a good deal of insurance companies that cover it?
In any case, my argument is one I've made before: many parents are Milgram Experiment-ed into it. If they want to travel to California to lob their daughter's breasts off, it's their choice, but if the practice is locally illegal, they'll probably figure out they don't have to listen to the psychopath in the labcoat.
Medicare estimates a national average compensation rate around 7.5k USD at hospital facilities (you may have to click the down arrow for "more cost information"). Most insurance companies (have to, ACA) cover it for gender care, but how that works out with deductibles is a treatise on its own.
I'm ... skeptical about the Milgram theory in general, and for this behavior in specific, but even presuming that they're correct and generally believing the Beware Trivial Inconveniences theory, I'd be really worried if a plane ticket and a couple weeks in an Extended Stay Express were enough of a trivial inconvenience, especially compared to everything else involved.
I personally know a parent that it happened to, and I met them by chance rather than activism. On the activist side as well "my kid said they're trans, so I took them to a psychologist hoping they'll talk through their feelings. Instead, I got a referral to an endocrinologist, and was told the kid will kill themselves if I don't give them hormones" is by far the most common origin story.
As others pointed out, it's not about trivial inconveniences, it's about preventing authority figures from pulling parents into something that goes against their better judgment. If they are willing to go to another state for the trans care, they were probably ok with it to begin with.
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Its not about the inconvienence. Its about Officially declaring that this is not the thing Good People are supposed to do. Its not a trivial inconvenience countering milgram-power, its taking away milgram power by defrocking. Who a conservative government can actually do that for remains to be seen of course.
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It costs double in the US compared to most other countries, but it’s still a complicated and expensive surgery that requires a decent amount of post-op care, and I wouldn’t trust a random Tennessee plastic surgeon with it.
The number of top surgeries on underage patients is in the hundreds per year for the whole US anyway, might as well have the minimum age be 18 and avoid the moral panic altogether.
My opinion on blockers and hormones isn't particularly high either, but yeah, never understood why we can't settle on 18+ for all this stuff.
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